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In Lawrence v. Texas, the Supreme Court situates its opinion within the history of laws banning sodomy. Lawrence, however, is also part of another historical narrative: the history of attempts by federal lawmakers and judges to define the relationships among the genus of illicit sex, the genus of licit sex, and marriage. Viewed from this perspective, Lawrence marks the latest intervention in a legal conversation that began when Congress enacted the 1907 Immigration Act and the 1910 Mann Act, each of which prohibited the movement of women across borders—the former, international, the latter, interstate—for “immoral purposes.” In the early twentieth century, through these provisions, lawmakers and judges constructed an isomorphic relationship between marriage/nonmarriage and licit sex/illicit sex. The “marriage cure” transported sex across the illicit/licit divide. But courts and legislators came to view these curative powers as a threat to marriage’s place in the sociolegal order because individuals used marriage as a tool to evade legal penalties. Thus, they checked the powers of the marriage cure and, in so doing, uncoupled both parts of their original isomorphism. Lawrence represents the culmination of this process: the movement of a sexual relationship across the illicit/licit divide at least in part because it made no claim to marriage. This move reflects the persistent status of marriage as simultaneously powerful in its ability to confer legal privileges and to shield people from the dangers of sexual illicitness, and powerless to protect itself from the taint of those same illicit practices. author. Associate Professor of Law, Columbia Law School. For their comments and insights, I am grateful to Richard Banks, Liz Cooper, Anne Coughlin, Mary Dudziak, Robert Ferguson, Katherine Franke, Jesse Furman, James Garland, Suzanne Goldberg, Victor Goldberg, Risa Goluboff, Beth Hillman, Nan Hunter, Anil Kalhan, Art Leonard, Christopher Lesley, Nicholas McQuaid, Melissa Murray, Julie Novkov, Robert Post, Richard Primus, Judith Resnik, Carol Sanger, Rich Schragger, Cathy Sharkey, Seana Shiffrin, Reva Siegel, Ed Stein, Leti Volpp, John Witt, and Kenji Yoshino, as well as participants in the faculty workshops at Columbia Law School, Stanford Law School, Seton Hall Law School, and Cardozo Law School, and participants in the legal history workshops at Yale Law School, University of Virginia Law School, and UCLA Law School. For superb research assistance, I am grateful to Rachel Kay, Steven Sandberg, Patricia Wencelblat, and, especially, Nicholas McQuaid. Alan Schoenfeld provided excellent editorial assistance. DUBLER V122022 (POST PROOFS) 2/6/2006 5:52:46 PM

Immoral Purposes: Marriage and the Genus of Illicit Sex